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Monday, June 23, 2014

Bainbridge: 'The Profession I love--Law Teaching--Is Walking Off a Cliff and Nobody Seems to Give a Damn'

Stephen Bainbridge (UCLA), How Not to Win Friends and Influence People at a Law Professor Conference:

Announce that empirical legal scholarship is the dumbest idea in the legal academy in the last 20 years. And that most law & PhD. folks are only in law for the law school paychecks. As I just did. Yikes. ...

The shift towards "Law and [fill in the blank with a PhD field]" has been a problem for a long time and a major factor in the separation of the legal academy from the profession and the bench. In today's environment, that trend is unsustainable. We are, after all, in the business of training LAWYERS who will spend their time practicing law not running regressions. ...

I see the profession I love--law teaching--walking off a cliff and nobody seems to give a damn. And, yes, that makes me angry.

Usha Rodrigues (Georgia), The "Law and" Question:

I'm not singing Steve's tune, but I will hum a few bars. ...

In the comments to his post Steve laments that "the legal academy is not producing scholarship that is relevant to the bench and bar or that our graduates (especially at the T14 schools) are coming out of school better versed in theory than professional skills."  This is a problem.  Even than for the general law prof, for  "Law and"s I  think that practice is vital.

To put it bluntly, Harvard/Yale/Chicago/Columbia/Stanford can hire whoever they want, because they're in the business of pedigreeing elite students.  They can hire professors who haven't practiced law and who  write about theoretical topics.  It doesn't effect their students' job prospects.   All the other law schools have lemming-like followed their lead, accepting without question that the way up the USN&WR rankings is to look as much like possible as the T5.  That worked fine during boom times, but in this legal market, it  seems a lot like walking off a cliff.

http://taxprof.typepad.com/taxprof_blog/2014/06/bainbridge.html

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Comments

The problem with Prof. Bainbridge's analysis is that it ignores the reason that people got interested in "law and" in the first place. Put simply, most "traditional" legal scholarship just wasn't very good, a point that CLS, law and economics, and earlier legal realism made clear over an extended period. The choice is not "law and" vs. practice-driven scholarship, which in practice means mediocre scholars who spend the rest of their time consulting. The choice is good "law and," of the type Prof. Bainbridge himself engages in, or bad "law and," which unfortunately has become increasingly prominent

Posted by: michael livingston | Jun 23, 2014 4:50:44 AM

Well said, by both of them. "Law and" professors should be limited to a few 3rd year seminars and LLM or SJD programs, and kept away from the vast majority of the student body. I had a Contracts professor who was a philosophy PHD who had never practiced... what a disaster teaching one of the fundamental courses for an attorney.

But for academics I am sure "Law and" is much more interesting than lowering themselves to function more like a common trade school. After all, they can break new ground and write fascinating papers about law and native American feminist gender studies, or some equally useful subject!!

Posted by: Todd | Jun 23, 2014 5:19:22 AM

Good stuff. Thanks Paul. The "law and" is interesting because where does it link up with those who want to save the profession by making sure law grads can interface with technology/business, etc. Perhaps the "and" has just been the wrong one. In fact, there probably is even room for law and economics only this time applied economics.

Dead on with respect to scholarship. You can write to be a star in the gold fish bowl of law professors or write for legislators, judges and attorneys and be regarded as pedestrian. The second is consistent with public service; the first is far more self-indulgent.

Posted by: Jeff Harrison | Jun 23, 2014 7:32:59 AM

Thank you Prof. Bainbridge. Succinctly stated.

As for Prof. Livingston, there is a place for "Law and . . ." It’s just that the place is not in the law schools; empirical-legal scholarship belongs in the liberal arts school of the university, and should be researched and taught by PhDs who also have JDs. Not the other way around.

Posted by: Publius Novus | Jun 23, 2014 8:24:15 AM

"The "law and" is interesting because where does it link up with those who want to save the profession by making sure law grads can interface with technology/business, etc."

Jeff, what does that even mean?

Posted by: JM | Jun 23, 2014 8:51:37 AM

It all comes down to relevance to what law schools should be doing. For me, the test is whether current law faculties can teach a transaction-based curriculum ("The Client Wants to Buy a Property," "The Client Needs a Will") rather than a doctrinal curriculum. The current debate is not new, nor is the present crisis a surprise, at least not to those who were looking closely:
Nine years ago: The Future of Legal Education and Law Faculty Activities (http://mauledagain.blogspot.com/2005_04_01_archive.html#111480459595542281)
Eight years ago: So What Do You Buy When You Pay Tuition? (http://mauledagain.blogspot.com/2006_11_01_archive.html#116404618939532957)

Posted by: James Edward Maule | Jun 23, 2014 9:25:13 AM

I agree with Steve both on his view of empirical legal work and on the law and courses. Two additional points. The current proposal to eliminate the requirement of a third year of law school is motivated by the high financial cost that students must bear. Another factor is that many of the courses in law school have little or nothing to do with preparing students for the practice of the profession. It s difficult to justify requiring students to spend so much to take those courses. Also, it is a mistake to suggest that the study of law itself is not a truly intellectual field. Law is a complex field that is just as interesting and worthy of intellectual study as any other field.

Posted by: Douglas Kahn | Jun 23, 2014 9:58:30 AM

The issue reaches much deeper than "traditional legal scholarship" versus "law and XYZ" scholarship. It is about whether the Langdellian model of legal education is still appropriate (discussions of whether it was ever appropriate will be left aside). There was not much wrong with the older models of apprenticing or the strictly-vocational model of antediluvian law schools like Litchfield. 'Twas those models, after all, that gave us lawyers like Webster, Hamilton, Lincoln, and Marshall - folk whose like we have not seen in the Langdellian era. What was the undergirding for the Langdellian model of law school? To institutionalize and make law a restricted pseudo-science of sorts (one is reminded that other Ivy League profs were playing around with Social Darwinism, eugenics, and phrenology in the era in and around ol' C.C. Langdell). Why restrict access to the law? Because waves of immigrants from not-England were coming to the US, and the socially conservative elites in Boston and New York feared that any old Catholic or minority could become a lawyer and sully the dignity of their courts.

That is the philosophical basis for modern legal education; there is no escaping that reality. It is the reason the entrance test to HLS used to consist of translating ancient Greek - the boys from Roxbury Latin would have no trouble with it, but it would be impossible for the immigrants who came from lands once under control of the ancient empires. The only question is why we bother to keep such a putrid, pedagogically risible system in place. Make law school vocational in nature, hire experienced lawyers to teach, and let the navel-gazers try to find jobs in the history or philosophy departments. Or go back to their preordained million-dollar law partner jobs that they gave up to teach.

Posted by: Unemployed Northeastern | Jun 23, 2014 10:05:26 AM

One interesting question is whether the problems are equally distributed across legal education. Using 2011 data, Bill Henderson compared associates hired with associates elevated to partner for T14 schools as a group and for non-T14 schools are a group. He found, in effect, that 51% of NLJ 250 associates from non-T14 law schools stayed and made partner. By contrast, only 18% from T14 schools did.

This is a stunning difference. Why T14 grads ended up leaving at such disproportionately high rates is not clear. It could be that they all had better options (unlikely in 2011, with its horrible job market). It could be that they weren't adequately trained. Or it could be that they had been misled into thinking that law was all about exciting high theory and not about the mundane tasks law is often about. In any event, Henderson's data suggests that the problem Bainbridge is worrying about may be concentrated in T14 schools (and perhaps T14 wannabes).

Posted by: Theodore Seto | Jun 23, 2014 11:51:36 AM

JM, that’s unfair. How am I to know what I meant several hours ago? Here is my guess. There has been all kinds of chatter over on the Faculty Lounge and Prawfsblawg about preparing students for nontraditional jobs – going into other industries and such. Seems to me that means more courses on different topics. So may the problem is not “law and whatever” in the abstract but whatever the whatever is. I don’t know the answer to this but there seems to be tension between sticking to what lawyers usually do and preparing them to have more diverse skills in order to “interface” as one blogger put it. That’s my story and I’m sticking to it for now, at least.
Since you’ve enticed me into the chat I’d like to add that some of the very worse empirical work I have seen is produced by law professors. Although it is true in all disciplines, most of the work I see is not to test an hypothesis but to prove a point and the numbers are massaged accordingly.

Posted by: Jeff Harrison | Jun 23, 2014 12:54:28 PM

Is there a form that I could use to nominate Stephen Bainbridge for President of AALS?

Posted by: andy | Jun 23, 2014 1:55:34 PM

I think part of the problem here is defining what is "useful to the profession." Two of the most influential law review articles I ever read were the Andrews piece on a consumption or cash-flow income tax and, outside of tax, the Susan Estrich article on rape and its consequences. I doubt that either of these articles earned practitioners a nickel. Do we really want less of this, and more articles on the latest innovation in tax shelters? I personally don't think so.

Posted by: michael livingston | Jun 24, 2014 2:17:06 AM

I think Estrich's article, at least, is a poor example of ambiguity on what constitutes usefulness to the profession and speaks against the idea of trivializing use to the profession as nothing more than an article's direct dollar value to practitioners. The article has been cited by three Federal Circuits and the highest court of 11 states (12 if you count DC). It may not have earned some transactional attorney a nickel, but it demonstrably influenced the law nationally and was undoubtedly useful to prosecutors, defense attorneys, and judges.

Posted by: Former Editor | Jun 24, 2014 5:43:06 AM

I think the bigger problem is that of people teaching law who find it uninteresting. Anybody who does find it interesting and is smart enough to do statistical research is going to learn legal reasoning and law. The problem isn’t limited to PhD’s. Indeed, I wonder how many J.D.’s become law professors precisely as a way to minimize their contact with actual law. Hyman’s “Why Did Law Professors Misunderestimate the Lawsuits against PPACA,” (a rare example of a doctrinal/empirical paper!) is on point. Con law professors could be very successful in their field while being total failures in predicting what the Supreme Court would do and in suggesting what legal strategies should be pursued in that much-studied case. Empirical law at least comes out with something real and useful in the end, and its scholars are modest in their claims to legal knowledge.

Posted by: Eric Rasmusen | Jun 24, 2014 9:07:04 AM

Of course there is a place in society for the discussion of theory, and I am sure some law review articles help push these macro ideas forward. However, it has been my experience that clients do not care about theory but what is possible now. Thus, should we not train future attorneys on the latest innovation in tax shelters, so that they can provide that info to their clients?

The best law professors I had were ones that could connect the present day practicalities/realities of the practice to the underlying theories. As Professor Maule illustrated in his blog, the ones that lived in the middle were the ones I recall all the time. Going too far into theory does not provide the student the tools to succeed in practice, but going too far to the other way does not develop the critical thinking we need as attorneys.

Posted by: Daniel | Jun 24, 2014 9:10:03 AM

Professor Seto, I bet the reason T14 graduates make partner less often is because they get Big Law jobs, which are up-our-out. A Yale JD friend of mine told me he was the first in his class to make partner--- because he resigned from his Big Law job after one year, took a vacation around the world, and then set up in solo practice. (30 years later, he's still at it, though he's acquired a partner or two.)

Posted by: Eric Rasmusen | Jun 24, 2014 9:18:37 AM

Daniel makes a good point. The best legal instruction I received was by professors who taught at the crossroads of theory and practice. If a course is too practical then it's difficult to interpret laws as they change over time. If a course is entirely theoretical then it's basically useless to everyone besides the professor and the few, if any, students who will be making policy as legislators.

Posted by: John S. Treu | Jun 24, 2014 5:08:12 PM